February 21, 2000
What is the Internet’s Greatest Promise?
Q: What is the internet's greatest promise?
A: I don't know that I have a good answer to that. It's obviously
a very efficient communications vehicle and a way to access
a lot of information quickly. What that will be used for,
I think, remains to be seen.
Does the Internet Need Governance?
Q: Is a formal governance structure a necessary component
of the development of the internet?
A: I doubt it. What has grown so far has grown without any
kind of governance and it's not clear to me that there's any
need for it in the future.
Q: Define governance.
A: I would define governance as some form of regulation of
the uses put to and the users of the internet. Ranging from
who gets access to it, to what kinds of content is available
under what circumstances, to what legal rules apply on some
kind of a generic basis.
Is ICANN Governance?
Q: Under that definition is ICANN a formal governance structure?
A: No. … It doesn't meet any of those standards. ICANN has
nothing to say about who gets access to the internet. It has
nothing to say about who can post content on the internet.
Has nothing to say about the legal rules that will apply to
activity undertaken on the internet. The only thing that ICANN
does that can even remotely be argued to fall within the governance
structure would be it's dispute resolution policy, and its
dispute resolution policy is specifically stated to be supplementary
to and secondary to any court decisions that are rendered
with regard to any dispute. So ICANN was never intended to
be and has been pretty carefully structured so that it is
not a governance structure notwithstanding the efforts of
some people to do it differently.
as an Administrative Body
Q: What would you characterize it as?
A: It's an administrative body. It's a body that has the responsibility
for making sure that the infrastructure which supports the
internet works efficiently and smoothly. It, as a result,
tries to promote and is intended to promote, and will if it
works correctly, stability of the infrastructure that supports
the internet. And it is specifically designed to have that
happen through private sector consensus as opposed to governmental
action, either by individual governments or by some multi-national
governmental body. So it is not only not governance, it is
specifically intended to prevent or lessen the need for governance.
Q: What do you say to those who seem to argue that what may
have been conceived of as an administrative body, as it becomes
more institutionalized and has a longer history will tend
to take on a direct governance role?
A: Well, I say anything is possible. But it hasn't happened
yet and there are significant interests and forces that will
make that difficult.
on ICANN’s Authority
Q: Such as?
A: Well, to start with, the fact that we don't have any armies
and without the ability to coerce compliance it's very difficult
to govern. Obviously the people who do have the armies are
the other governments of the world.
Q: But there is some power ... There does seem to be some
opportunity for ICANN to sanction by assignment of IP addresses.
A: Well, first of all ICANN doesn't assign actual IP addresses.
So we can't do anything with respect to that. All ICANN
does is allocate blocks of numbers to IP registries who then
assign to large users, whether they be ISPs or companies,
blocks of addresses who then assign them to individual computers
or individual users. So ICANN is not involved in that process
Q: But you do control which registries are recognized.
A: Well, it's not even clear that we control that. First of
all, we don't control any of that right now because the U.S.
government still maintains all of those controls. But assuming
the completion of the transition process (it'll be easier
to use that as the basis for the discussion), even then it's
not clear that ICANN has any "control" over that.
It's coercive capacity with respect to the IP registries would
be to refuse to give to them any more blocks of numbers. Then
if we did that one of two general things would happen. Either
they would comply with whatever rules we thought they were
violating, or they would tell us to go get stuffed and turn
to their members who are after all all the large ISPs in the
world and say that ICANN is off the reservation and you should
ignore them and we'll be assigning our own numbers from hereon
It's not like we have these numbers in a closet someplace.
The only reason that ICANN can assign these numbers is because
the world internet community recognizes it as the authority
from which these numbers come. As soon as that recognition
goes away, we have no power whatsoever. So the concept that ICANN actually owns something
or controls something is what underlies [concerns from] those
people who raise these issues
[and] who are honestly raising them as opposed to the
people who … have their own agendas. And they're just wrong
because we don't own any of those things, we'll never own
any of those things, and we'll continue to have influence
only to the extent that the world internet community wants
us to. And as soon as they decide that we're off the reservation
someplace, they'll go away and do something with somebody
ICANN: ICANN as Plumber
Q: What do you think the Domain Name System should look like
in 10 years and how can ICANN help?
A: I have no idea what it's going to look like, and if ICANN
is doing what it's supposed to be doing, it shouldn't help
shape it at all. That'll be a result of all the forces that
interact on the internet, and ICANN really isn't or shouldn't
be one of those. We're the guys who keep the plumbing from
being clogged. That's our only job. We have no jobs other
than that although I'm quite sure that there will be all sorts
of people who will want us to do other jobs from time to time.
Hopefully they won't succeed. And if they don't and if we
stick to just doing the plumbing, we shouldn't have any influence
on those more cosmic matters at all.
Q: So as a normative matter, do you have a view of what it
should look like?
A: It should be exactly what it's set out to be. It should
be the plumbing organization. I think it's awfully hard to
imagine how this kind of a structure … of bottom-up consensus,
global non-profit, non-governmental structure, it's awfully
hard to see how that could really take on a positive governance
role. You know, the United Nations is a pretty unwieldy body,
but it's at least an organization made up of governments which
actually do have control over pieces of the world, one way
or the other. By comparison, ICANN is a hell of a lot more
unwieldy than the United Nations is, and I just don't see
how it's likely that we could, even if we wanted to and even
if there was some general consensus around the world that
we should, I don't think it's likely that we could effectively
manage a true regulatory system. A regulatory system is almost
by definition top-down. Our system is set up to be bottoms-up.
Bottoms-up is a pretty damn inefficient way to come up with
anything. And so it's hard to imagine us being an effective
regulator or governor with our current system.
CONSENSUS: Defining Consensus
Q: Speaking of consensus, can you define that term?
A: It's something less than unanimity and something more than
a bare plurality. It's not a voting concept. So 50.1 isn't
what you're looking for. But obviously you're not looking
for unanimity. The IETF definition of "rough consensus"
assumes that there will be some voices out there arguing against
the result, but those voices are wildly outnumbered. So does
that make it 75%? 80%? 85%? 90%?
Who knows? And I think the fact of the matter is, especially
in our context, consensus will be broad enough support from
enough of the members of the internet community to actually
implement a policy. If ICANN goes out and seeks to implement
a policy and there is not a consensus behind it, it won't
happen. And so if it happens, if it in fact implements the
policy, then I think it would be fair to say that it has consensus
support. But you're probably not going to know that for absolute
certain on any policy until you try to implement it.
CONSENSUS: As Applied
Q: Can you think of any major policy initiatives recently
that ICANN found it didn't have consensus on?
A: Well, first of all there haven't been that many so it's
a pretty short list to look at. No, I think the only one that
would be arguable would be the initial funding mechanism,
where if you want to count the United States Congress, we
clearly didn't have their consensus. But with that exception
I don't think ICANN has in fact implemented anything that
didn't have consensus support because there's been nothing
that it implemented that blew up in its face which would be,
I think, the best test of that.
Q: So it almost sounds as if things are in reverse, almost.
You know if you have consensus once you implement something.
A: I don't know how else you'd test it. Again, if you had
a system where everybody had joined up and bound themselves
to abide by the will of the majority, or even a supermajority,
but a specified supermajority, then you'd know what the rules
were. If you got the majority or supermajority vote then that
was the rule and people were bound by it and they didn't have
a choice so that was it. But we don't have that system. We
don't have a system where people have agreed to bind themselves
to anything other than a determination by the ICANN board
following a specified process that there is consensus support
for a particular initiative. And I'm quite confident that
over the years there are going to be some occasions where
the ICANN board goes through that process and concludes that
there is in fact a consensus and implements a policy and one
of two things happens: either somebody's going to sue in some
court in some country saying that ICANN in fact said that
this was a consensus but it didn't follow this, this, or this
piece of its rules and processes so it's ultravirous, it's
not truly a consensus policy. Therefore we don't have to follow
it. Or the policy is going to be announced and implemented
and a bunch of people are simply not going to follow it, in
which case it's going to fail. Surely one of those two things
is going to happen at some point in the future. That'll be,
in either case, a big problem at that point because it will
have isolated a situation where the ICANN process didn't work.
Now, hopefully we can minimize the occurrence of those occasions
by doing the process right, but I think that' really about
the only time that you're going to be able to determine that
there is not a consensus. And again, when you're talking about
an environment in which people voluntarily agree to abide
by this, or they don't even agree - they just voluntarily
abide by it or they don't. You know, you sort of have to look
at results to see whether or not the ICANN board read the
population right. Now, if we end up with contracts, as we
would like to end up with, with a large number of internet
actors, such as the one we have with NSI, which go into more
detail in defining for the purpose of that contract what the
definition of consensus will be (as the NSI contract does),
or if those provisions are ultimately embodied in the ICANN
bylaws so that they become institutionalized, then maybe it
will be easier to tell as we go through the process.
ICANN: Board Elections
Q: Can I pick up on one incident that's caught a lot of attention
on the Names list in our class and seems to be a real point
of debate even though it's hard to pick out from that debate
what actually happened. It relates to what you were saying
about ICANN's need to do the process right and have a better
chance of having the internet community on board. And that
relates to the board elections. Can you give us your version
of what happened there.
A: I can tell you exactly what happened because I think I'm
the only person alive who actually knows exactly what happened
since Jon Postel is now dead. We're talking about creating
something from nothing. You know there was no ICANN, there
was no … recognizable constituencies, there certainly were
no subordinate entities that were producing this. And so we're
talking about creating something from nothing. If you look
around the world and see how non-profit organizations get
created from nothing, they get created in exactly the way
we did. You come up with a concept, you come up with a set
of bylaws, you come up with some initial incorporators, you
incorporate the thing, then from that, in most non-profit
circumstances, the board is self-perpetuating. They add new
people or subtract people on their own. In our situation because
we were trying to reflect, because Jon was trying to reflect
what he read as the consensus of the community, in creating
the structure and bylaws of the organization we put out six
or seven iterations of that over time, each time trying to
reflect the reactions that people had to the last set as best
we could read them. And for the initial board members we solicited
recommendations from the world; everybody, anybody. And we
got, literally, hundreds of suggestions, and then we sorted
through those in a variety of ways. One, we were able to eliminate
a bunch of people on our own because we came to a conclusion
(and I have to admit this was unilateral on our part)…
Q: Who is "we"?
A: Jon Postel. Actually I say "we," but I should
say Jon Postel because I was working for him. He came to the
conclusion that it would be silly and counter-productive to
have an initial board made up of the combatants because the
likelihood was that they would continue their combat on the
board and so he determined that the initial board ought to
be people who were not active combatants in the wars leading
up to the creation of ICANN. So that was the one unilateral
decision that was made. So we cut out all the active combatants
that people had recommended, and that left us with you know
a fairly long list of people who had not been active combatants. And with those we asked everybody who we could
find to give us their reactions to them. Do you know this
person? Do you like this person? Are they any good? Would
they be interested, etc. So over time winnowed the list down
to a manageable number and started approaching people and
got turned down by a number of people. And had a number of
other people say they were willing to do that and finally,
I think actually the day before the ICANN proposal was turned
into the Department of Commerce, got our last person to agree
to be on the initial board and put forth a slate, and again
with the notion that (this was Jon's belief) this group of
people would attract consensus support from the internet community.
And in fact I think it's almost completely impossible to argue
now, although I know there are still some who do, that that
was incorrect because if you talk to people out in the community
today, the biggest point they make about the board is that
they're very concerned about seeing this group of board members
go away and worry about who's going to replace them. Because
this board has in fact attracted very broad support from the
Q: Two clarifying questions. ... The first being at what point
did Postel's death happen in this process?
A: It happened … Postel suffered his heart attack three or
four days before we turned in the proposal to the Commerce
Department. So the last board member was somebody that Postel
had asked but we didn't get his answer until after Postel
had had his heart attack. Now he did not die right away. He was in intensive care for three
or four days or maybe a week or so, and then came out of intensive
care and was thought to be on the road to full recovery, and
in fact suffered his ultimate attack which killed him instantly
when he was sitting up in the hospital room talking to his
family, everybody thinking that he was just fine. So that
happened about two or three weeks later.
BACKGROUND IN INTERNET ISSUES
Q: The other clarifying question is just, if you would, describe
your background and coming to work for Postel and how you
ended up where you are today.
A: It was one of these weird serendipitous things. I'm an
antitrust lawyer by experience and within my firm, for reasons
that are completely obscure, I've had some responsibility
for our technology practice generally, now for the past five
years or so. Jon Postel decided, I think in April of '98,
when he had a pretty good idea of what the U.S. government
was likely to do when it ultimately produced what was called
the White Paper, he decided that he needed some legal assistance.
I think his perception was that he needed people to help him
draft things. And he needed people to help him deal with Washington
issues, because it was his perception that it was Washington
problems that had derailed the last time he had tried to do
this, which was the gTLD-MoU effort. And so he sent out an
e-mail to about 8 or 10 law firms that he had researched,
heaven only knows how, and concluded met his specifications,
which were corporate experience, antitrust experience and
international offices. And we responded to that.
Simply, it came to me because of my firm responsibilities.
I looked at it, had no clue who Postel was, had no idea about
any of this was, had never heard of the domain name system,
quite frankly, and thought this looks kind of interesting,
let's talk to the guy. We talked to the guy, and if you talked
to the guy you were immediately pretty impressed by him, and
decided that we would provide some pro bono assistance to
him because it didn't look like it would be that big a deal
and it looked like it would be kind of interesting. So I told
my managing partner that I didn't know how much this would
cost, but I thought maybe, you know if we got extreme, maybe
$100,000 worth of legal time. Ended up being well over a million
dollars worth of legal time, but we didn't anticipate that
at the beginning. And of course once you’re in it you really
can't get out of it, so we just stuck through with it. And
once Jon died, we really felt a responsibility to make it
happen because, while I don't think you could say that his
death was due to this, it's certain that the stress and strain
of trying to put this together obviously wasn't helpful to
him. So we stuck with it after that, more out of an obligation
to him than anything else.
ICANN: The Role of The Berkman Center
Q: Another subsidiary point to the question of legal research
and representation on ICANN matters. What's the relationship
of the Berkman Center to ICANN?
A: The Berkman Center got into this game, it may have done
before the White Paper, but after I became aware of what was
happening. They got into this simply because they were
interested in the issues, as best I could tell. And Jon Zittrain
started coming to the various meetings that were held to discuss
the White Paper and the formation of ICANN. And then over
time Berkman started offering more and more resources and
I think, to some extent like a lot of the rest of us, sort
of got sucked into a bigger role than it had in mind in the
beginning and became a resource for the community as a whole.
And then got more length even than it was because several
of the people who were Berkman affiliated, starting with Molly
Shaffer Van Houweling, who was a Berkman fellow, and then
Andrew McLaughlin, became part-time employees of ICANN, and
in Andrew's case pretty close to a full-time employee now.
And so that connection was even broader. My guess is that
if you talk to Jon and others at Berkman, they would say that
they put a lot more time and effort into this than they had
anticipated and probably spent more money than they had anticipated
but that was true of a lot of us.
GOVERNANCE: Query to Those Worried
About ICANN as Governance
Q: ... I think we have enough to go on for now. We may when
talking to other people have things that it's only fair to
let you respond to. …
A: I think that, as you will see if you haven't already, from
talking through this that there's a whole range of views on
some of these issues but to the extent that you talk to those
who are worried about the governance issue here, you should
press them to have them explain why they think this has governance
implications either now or in the future, because sometimes
they're a little fuzzy on that.